Holding

The Joint Commissioner exceeded his jurisdiction; the dismissal was supported by sufficient evidence and the doctrine of res ipsa loquitur applies, so approval under Section 33(2)(b) must be granted.

Issues considered

Whether the Joint Commissioner of Labour has jurisdiction under Section 33(2)(b) of the Industrial Disputes Act to re‑appreciate the evidence and reject approval of a disciplinary dismissal.
Whether the absence of eye‑witness testimony renders the departmental enquiry’s finding of guilt perverse.
Whether the doctrine of res ipsa loquitur applies to a fatal accident caused by a driver on duty, thereby shifting the burden of proof to the employee.

Legislation cited

Industrial Disputes Act, 1947s. 33(2)(b)

Subjects

Industrial Disputes ActSection 33(2)(b)Joint Commissioner jurisdictionRes ipsa loquiturBurden of proofDepartmental enquiryDisciplinary dismissalNatural justice

Judgment

[2016] 4 S.C.R. 266

A THE MANAGEMENT OF TNSTC (COIMBATORE) LTD.
v.
M.CHANDRASEKARAN
(Civil Appeal Nos. 6765-66of2014)
B SEPTEMBER 02, 2016
[T. S. THAKUR, CJI AND A.M. KHANWILKAR, J.]
Industrial Disputes Act, 1947: s.33(2J(b) - Scope of
;urisdiction of Joint Commissioner - Respondent employed as a
driver by appellant caused fatal accident - Enquiry Officer found
c
him guilty - Disciplinary authority passed an order of dismissal -
Appellant filed an application (approval petition) uls.33(2)(b) of
the Act, before Joint Commissioner - Joint Commissioner held
enquiry officers report perverse, refused to accord approval for
dismissal of respondent - High Court upheld the decision of Joint
D Commissioner - On appeal, held - The Commissioner exceeded his
iurisdiction in reappreciating the evidence adduced before the
enquiry officer and in substituting his own judgment to that of
Disciplinary authority - It was not a case of no legal evidence
produced during the enquiry by the department, in relation to the
charges framed against the respondent - Considering the fact that
E
there was adequate material produced in the Departmental enquiry
evidencing that fatal accident was caused by the respondent while
driving the vehicle 011 duty, the burden to prove that accident
occurred due to some other cause than his own negligence was on
re~pondent - Doctrine of res ipsa loquitur squarely applies to the
F facts of the case-Application uls. 33(2)(b) allowed.
Chalan Roadways Ltd. v. G. Thirugnanasambandam
(2005) 3 sec 241: 2004 (6) Suppl. SCR 1123 -
relied on.
A. Mariasundararaj v. Cheran Tramport Corporation
G Ltd.in W.A. No. 2238 of 2000; State of Haryana &
Others v. Rattan Singh (1977) 2 SCC 491; Divisional
Controller KSRTC (NWKRTC) v. A. T. Mane (2005) 3
SCC 254; Thakur SinKh v. State of Punjab (2003) 9
sec 208- referred to.
H
266
THE MANAGEMENT OF TNSTC (COIMBATORE) LTD. v. M. 267
CHANDRASEKARAN

Case Law Reference A
W.A. No. 2238 of 2000 referred to Para3
2004 (6) Suppl. SCR 1123 relied on Para 7
(1977) 2 sec 491 referred to Para 10
(2005) 3 sec 254 referred to Para 10
B
(2(103) 9 sec 208 referred to Para 10
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6765-
6766 of2014.
From the Judgment and Order dated 22.11.2013 of the High Court
of Judicature at Madras in W. A. Nos. 2082 & 2083 of2013. C
R. Ayyam Perumal, Ms. Enakshi Mukhopadhyay, Advs. for the
Appellant.
· Beno Benzi gar, Soma Sundram, P. Soma Sundaram, Ad vs. for the
Respondent.
D
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. These appeals challenge the
decision of the Division Bench of the High Court of Judicature at Madras,
dated 22.11.2013, in Writ Appeal Nos. 2082 and 2083 of2013.
2. Briefly stated, the respondent was employed as a driver by the E
appellant on 14.04.1986. While on duty on 15.01.2003, on vehicle TN-
38-0702, during a trip from Kovai Ukkadam to Pollachi, near
Vadakkipalayam he caused an accident with a car bearing No. TMA
4845 coming from the opposite direction resulting in fatal injuries to
persons travelling in that car. Disciplinary enquiry was instituted against
F
the respondent inter alia on the charge of driving the bus in a rash and
negligent manner. The Enquiry Officer found the respondent guilty of
the charges framed in Charge Memo dated 22.01.2003. The Disciplinary
Authority after giving opportunity to the respondent passed order of
dismissal on 13.10.2003. The appellant then submitted an application,
·being Approval Petition No. 480 of2003, under Section 33(2)(b) of the G
Industrial Disputes Act, 1947, before the Joint Commissioner Labour
(Conciliation), Chennai as an industrial dispute was pending for conciliation
before him. The Labour Commissioner, after analysing the material
placed before him in the said proceeding noted that the Department only
examined two witnesses who were also cross-examined by the
H
268 SUPREME COURT REPORTS [2016) 4 S.C.R.

A respondent. The respondent examined himself as defence witness, but
was not cross-examined by the Department. The Commissioner, however,
found that the enquiry against the respondent was conducted in
accordance with the principles of natural justice and al so in conformity
with the Standing Orders. While dealing with the quality of evidence
adduced by the Department, the Commissioner found that the same, by
B
no standard woul'd substantiate the charges framed against the
respondent. The first witness was the Junior Engineer. He had submitted
a site inspection report and stated in his evidence that the car came with
speed to the left side from Vadakkipalayam branch road to the main
road and then came to the centre of the road. His evidence about the
c occurrence of accident was on presumption. The second witness
examined by the Department was the Assistant Manager. He stated
that the bus driver as well as car driver had driven their vehicles speedily.
He also stated that car was driven in the middle of the road with speed
at the time of accident. The defence of the respondent was that when
he was approaching Vadakkipalayam branch road, an ambassador car
D
driven by a 17 year old boy named Sivakumar came on the wrong side
of the road at a high speed and, after entering the main road went to the
left side of the bus in wrong direction. The respondent, therefore, first
thought of driving the bus to the left. But, as some pilgrims were going in
a'procession on the left side of the road and as the car was beirtgdriven
E rashly and had come to the left side of the bus, he was left with no option
except to take the bus to the right side to avoid a head on collision. This
averted a fatal accident to pedestrians and minimized the damage to the
car coming from the opposite direction on the wrong side. This also
ensured the safety of the bus passengers. In substance, the respondent
pleaded that the accident was caused due to unavoidable circumstances
F
and in spite of all precautions and applying his best judgment in
maneuvering the vehicle.
3. The Commissioner found that the respondent had deposed about
these facts as defence witness, but was tiot cross-examined by the
Department. No eye witness was examined by the Department nor the
G conductor of the bus or passengers travelling in the same bus were
examined by the Department. The Commissioner, therefore, concluded
that the finding reached by the Enquiry Officer by merely relying on the
evidence of the Junior Engineer and the Assistant Manager (who were
not eye witnesses), was perverse. In that, the charges were not proved
H against the respondent by independent legal evidence of eye witnesses.
THE MANAGEMENT OF TNSTC (COIMBATORE) LTD. v. M. 269
CHANDRASEKARAN [A. M. KH_ANWILKAR, J.]

The Commissioner held that the Enquiry Officer's report was vitiated A
being perverse. The Commissioner also relied on the decision of the
Division Bench of Madras High Court in WritAppeal No. 2238 of2000
in the case of A. Mariasundarara.i vs. Cheran Transport Corporation
Ltd., which had deprecated the practice of not examining eye witness
or other relevant evidence during the enquiry in respect of accident cases
B
by the State Transport Corporation, and as it results in not confirming
the charges and punishments awarded against its drivers involved in
accidents. The Commissioner, therefore, refused to accord approval
for dismissal of the respondent.
4. Being aggrieved by this decision, the appellant-Management
preferred Writ Petition No. 2425 of20 I 0. Even the respondent preferred
c
Writ Petition No. 23155/2009 for issuing writ of mandamus against the
Corporation to implement the order passed by the Joint Commissioner
of Labour, Chennai dated 25.05.2009 in Approval Petition No. 480/2003;
and to reinstate him with continuity of service, back-wages and all other
attendant benefits. Both the writ petitions were heard analogously by D
the learned Single Judge. The Single Judge noted the seven reasons
recorded by. the Commissioner to disapprove the dismissal of the
respondent, as follows: -
"a) Except examining witnesses, who are employees of the
petitioner Corporation, the petitioner has not examined any E
independent witness to prove that the accident took place
because of the rash and negligent driving of the 211.1 respondent
resulting in the death of 9 persons.
b) The Engineers report, which was marked as Ex. A2 shows
that the car came fast from the branch road to the main and
F
came to the centre of the road and the bus was coming on the
right side of the road instead of the left side on high speed.
The report fixed prime responsibility on the bus driver and
part responsibility on the car driver. Though the Junior
Engineer, who gave this report, deposed that the car and the
bus came with speed, he was not an eye witness to the G
occurrence and he had described the occurrence only on
presumption.
c) P. W.1, the Assistant Manager of the petitioner Corporation,
though deposed that the bus driver as well as the car driver
had driven the vehicles in high speed, he was also not an eye H
270 SUPREME COURT REPORTS [2016] 4 S.C.R.

A witness to the occurrence and hence, his evidence also cannot
be taken into consideration to fix the responsibility on the 2'"1
respondent.
d) The conductor of the bus, who could have been exa111ined
on the side of the petitioner Corporation, had not been
B examined.
e) Not even a single passenger of the bus was examined to
prove or establish that the 2'"1 respondent, the driver of the
bus, had driven the vehicle in a rash and negligent 111anner.
f) The Enquiry Officer had relied 011 the evidence of the
c Engineer and the Assistant Manager, who were not eye
witnesses to the occurrence and their evidence was
uncorroborated by any independent witness.
g) The 2"" respondent had denied that he was responsible for
the accident and stated that the ambassador car, which took
D a left turn ji-0111 the branch road and came driving to its right
side, suddenly turned to the left and therefore, the accident
had occurred. However, the 2"'1 respondent 1l'as not subjected
to cross-examination. "
5. The Single Judge then opined that the view so taken by the
E Commissioner was well founded and did not warrant any interference.
Reliance was also placed on an un-reported decision of Division Bench
of the same High Court in Writ Appeal No. 223 8 of2000 in the case of
~· Mariasundarara.i (Supra). The relevant dictum in that decision has
been reproduced in paragraph 7 by the Single Judge, as follows:-
F " We have to point out that when we come across such accident
case, where disciplinary actions are initiated by the State
Transport Corporations, invariably except the statement of
the inspecting official, the sketch and photographs, no other
evidence is placed before the Inquiry Office1: It is also
repeatedly being pointed out that in the absence of such
G
independent evidence before the Court, it is difficult for the
Court to confir111 the punishment awarded as against such
erring drivers. "
6. Accordingly, the Single Judge dismissed the writ petition
preferred by the appellant and allowed the writ petition preferred by the
H
THE MANAGEMENT OF TNSTC (COIMBATORE) LTD. v. M. 271
CHANDRASEKARAN [A. M. KHANWILKAR, J.J

respondent and issued direction to the appellant Corporation to reinstate A
the respondent with back-wages and continuity of service and all other
attendant benefits.
7. Being aggrieved, the appellant preferred Letters Patent Appeal
bearing Writ Appeal Nos. 2082 and 2083 of2013. The Division Bench
affirmed the view taken by the Single Judge. The Division Bench B
distinguished the decision of this Com1 in the case ofCholan Roadways
Ltd. Vs. G. Thirugnanasambandam' which was pressed into service
by the appellant, on the principle of res ipsa /oquitur. The Division
Bench held that merely on the basis of evidence of the Assistant Manager
and the Engineer, who were not the eye witnesses, the charges against
the respondent remained unsubstantiated. Hence, the writ appeals came
c
to be dismissed. This decision is the subject matter of challenge in the
present appeals.
8. According to the appellant, the evidence produced by the
Department was sufficient to bring home the charge of rash and negligent
driving by the respondent on the day of accident. The Commissioner D
exceeded his jurisdiction in recording a contrary finding while refusing
to accord approval to the order of dismissal of the respondent passed by
the Department, considering the fact that the accident admittedly caused
fatal injuries to passengers travelling in the car. It is contended that
considering the seriousness of the charges and the fact that the E
respondent was driving the bus in a rash and negligent manner, the
approach of the Commissioner was hyper-technical. That is not only a
manifest error but has also resulted in grave injustice. The respondent
on the other hand contends that the Commissioner has applied the well
settled legal position that there can be no presumption of misconduct by
the employees; That, charge must be proved by the Department during F
the inquiry. Non- examination of the material witnesses such as eye
witnesses present on the spot, conductor and passengers, travelling on
the same bus was fatal. For, it entails in not substantiating the charges
against the respondent and failure to discharge the initial onus resting on
the Department to prove the charge as framed. According to the G
respondent, no fault can be found with the tangible reasons recorded by
the Commissioner as noticed by the Single Judge (reproduced above);
and resultantly, the conclusion of the Commissioner of not according
approval to the order of dismissal is just and pr"per. It is submitted that
'(2005) 3 sec 241
H
272 SUPREME COURT REPORTS [2016] 4 S.C.R.

A the Single Judge was justified in allowing the writ petition preferred by
the respondent and issuing direction to the appellant to reinstate him
with back-wages and continuity of service and all attendant benefits
accrued to him.
9. The moot question is about the jurisdiction of the Joint
B Commissioner of Labour (Conciliation) whilst considering an application
for approval of order of punishment under Section 33(2) (b) of the
Industrial Disputes Act, 194 7. It is well settled that the jurisdiction under
Section 33(2)(b) of the Act is a limited one. That jurisdiction cannot be
equated with that of the jurisdiction under Section 10 of the Industrial
Disputes Act. This Court in the case of Clio/an Roadways (Supra)
c observed thus:
"18. The jurisdiction of the Tribunal while considering an
application for grant of approval has succinctly been stated
by this Court in Martin Burn Ltd. Vs R.N. Banerjee (AIR 1958
SC 79). While exercising jurisdiction under Section 33(2) (b)
D of the Act. the Industrial Tribunal is required to see as to
whether a prima facie case has been made out as regard the
validity or otherwise of the domestic enquiry held against the
delinquent; keeping in view the fact that if the permission or
approval is granted, the order of discharge or dismissal which
E may be passed against the delinquent employee would be liable
to be challenged in an appropriate proceeding before the
Industrial Tribunal in terms of the provision of the Industrial
Disputes Act. In Martin Burns case (supra) this court stated:
"A prima (acie case does not mean a case proved to the
F hilt but a case which can be said to be established if the
evidence which is led in support of the same were believed.
While determining whether a ptima facie case had been
made out the relevant consideration is whether on the
evidence led ii was possible to arrive at the conclusion in
question and not whether that was the only conclusion
G which could be arrived at on that evidence. It may be that
the Tribwial considering this question may itself have
arrived at a different conclusion. It has. however, not to
substitute its own judgment for the judgment in question.
It has only got to consider whether the view taken is a
H possible view on the evidence on the record. (See
THE MANAGEMENT OF TNSTC (COIMBATORE) LTD. v. M. 273
CHANDRASEKARAN [A. M. KHANWILKAR, J.]

Buckingham & Carnatic Co. Ltd. Vs The Workers of the A
Company (1952) Lab. AC 490 (F). ""
(emphasis supplied)
This judgment was relied by the appellant before the Division Bench.
The Division Bench, however, brushed it aside by observing that the
principle of Res ipsa loquitur is not applicable to the case on hand. B
That approach, in our opinion is untenable. Irrthat, the said decision not
only deals with the principle of Res ipsa loquitur but also with the scope
ofjurisdiction of the Commissioner under Section 33(2)(b) of the Act. It
also delineates the extent of scrutiny to be done at this stage to ascertain
whether prima facie case is made out for grant or non-grant of approval c
to the order of punishment. In doing so, the Commissioner could not
substitute his own judgment but must only consider whether the view
taken by the Disciplinary Authority is a possible view on the evidence on
record.
10. In the present case, the sole reason which weighed with the D
Commissioner was that no independent witness was produced - not even
a single passenger of the bus was examined by the Department. The
decision relied by the appellant squarely deals even with this reasoning.
It has been h_eld that, in the case of State of Haryana & Others Vs.
Rattan Singh 1 the Court held that mere non-examination of passenger
does not render the finding of guilt and punishment imposed by the E
Disciplinary Authority invalid. Similar view has been taken in the case of
Divisional Controller KSRTC (NWKRTC) vs. A. T. Mane-'. Both these
decisions have been noticed in the reported decision relied by the
appellant. The burden to prove that the accident happened due to some
other cause than his own negligence, is on the employee, as expounded F
in the case of Thakur Singh vs. State of Punjab' referred to in the
reported decision. In the reported case relied by the appellant, it has
been noted as under:
"34. Jn the instant case the
e •••••••••••••••••••••••••••••••••

Presiding Officer, Industrial Tribunal as also the learned Single G
Judge and the Division Bench of the High Court misdirected
themselves in lmv insofar as they failed to pose unto themselves
correct questions. It is now well-settled that a quasi-judicial
2
(1977)2 sec 491
' (2005) 3 sec 254
'(2003) 9 sec 20s H
274 SUPREME COURT REPORTS [2016] 4 S.C.R.

A authority must pose unto itself a correct question so as to
arrive at a correct finding of fact. A wrong question posed
leads to a wrong answer. In this case. furthermore, the
misdirection in law committed by the Industrial Tribunal was
apparent insofar as it did not apply the principle of Res ipsa
loquitur which was relevant for the purpose of this case and,
B
thus, failed to take into consideration a relevant factor and
furthermore took 'into consideration an irrelevant fact not
germane for determining the issue, namely, the passengers of
the bus were mandatori/y required to be examined. The
Industrial Tribunal fiirtherfailed to apply the correct standard
c of proof in relation to a domestic enquiry, which in
'"preponderance of probability" and applied the standard of
proof required for a criminal trial. A case for judicial review
was, thus, clearly made out. "
11. Applying the principle stated in Cho/an Roadways Ltd.
D (Supra), what needs to be considered is about the probative value of
the evidence showing the extensive damage caused to the bus as well
as motorcar; the fatal injuries caused to several persons resulting in
death; and that the nature of impact raises an inference that the bus was
driven by the respondent rashly or negligently. The material relied by the
Department during the enquiry supported the fact that the respondent
E was driving the vehicle at the relevant time and because of the high
speed of his vehicle the impact was so severe that the two vehicles
were extensively damaged and the passengers travelling in the vehicle
suffered fatal injuries resulting in death of five persons on the spot and
four persons in the hospital besides the injuries to nine persons. These
F facts stood established from the material relied by the Department, as a
result of which the doctrine of Res ipsa /oquitur came into play and the
burden shifted on the respondent who was in control of the bus to establish
that the accident did not happen on account of any negligence on his
part. Neitherthe Commissioner nor the High Court considered the matter
on that basis nor posed unto themselves the correct question which was
G relevant for deciding the application under Section 33(2)(b). On the other
hand, the order of punishment dated l 31h October, 2003, exfacie, reveals
thatthe report of the Enquiry Officer referring to the relevant material
established the factum and the nature of accident warranting an inference
that the respondent had driven the bus rashly and negligently. Further,
H the observation in the unreported decision of the Division Bench of the
THE MANAGEMENT OF TNSTC (COIMBATORE) LTD. v. M. 275
CHANDRASEKARAN [A. M. KHANWILKAR, J.]

same High Court was not relevant for deciding the application under A
Section 33(2)(b). Significantly, the order of punishment also adverts to
the past history of the respondent indicative ofrespondent having faced
similar departmental action on thirty two occasions, including for having
committed minor as well as fatal accidents while performing his duty.
12. In our opinion, the Commissioner exceeded his jurisdiction in B
reappreciating the evidence adduced before the Enquiry Officer and in
substituting his own judgment to that of the Disciplinary Authority. It
was not a case of no legal evidence produced during the enquiry by the
Department, in relation to the charges framed against the respondent.
Whether the decision of the Disciplinary Authority of dismissing the
respondent is just and proper, could be assailed by the respondent in
c
appropriate proceedings. Considering the fact that there was adequate
material produced in the Departmental enquiry evidencing that fatal
accident was caused by the respondent while driving the vehicle on
duty, the burden to prove that the accident happened due to some other
cause than his own negligence was on the respondent. The doctrine of D
Res ipsa loquitur squarely applies to the fact situation in the present
case.
13. Ordinarily, we would have remitted the matter back to the
Commissioner for consideration afresh, but as the matter is pending for
a long time and as we are satisfied that in the fact situation of the present E
case approval to the order of punishment passed by the appellant against
the respondent should have been granted, we allow the application under ·
Section 33(2)(b) preferred by the appellant but with liberty to the
respondent to take recourse to appropriate remedy as may be available
in law to question the said order of dismissal dated 13'h October, 2003.
F
14. Accordingly, we set aside the impugned decisions of the High
Court as well as of the Joint Commissioner. The appeals are allowed in
the above terms with no order as to costs.
Ankit Gyan Appeals allowed.